The position of the Government and of the main opposition parties in relation to the Treaty of Nice is that if ratified it will complete the process of preparing the European Union for the admission of a significant number of new member-states. Thus, the way will be cleared for enlargement, subject to satisfactory completion of the accession negotiations with the countries which have applied for membership.
On this basis we can assume that in the absence of a new form of federal government such as that proposed recently by Chancellor Schroder the Treaty of Nice will form the basis on which the governance of Europe will continue in the coming decades. But what does this mean for the quality of our democracy in Ireland as a nation State within the context of the union?
When the Nice proposals are examined against the background of how major decisions of the institutions of the Union are currently made one must reach the conclusion that there is a significant risk that there will emerge more and more decisions from the institutions of the Union in which the citizens of this State will have had little or no influence.
Three recent decisions of Union institutions which have had and will have major impact here show that affected Irish citizens or their representatives have had little or no say in the deliberations which led to the decisions concerned.
The decision of the Supreme Court, delivered on March 30th, 2001, in the case of Nicholas Maher and Others v Minister for Agriculture, Food & Rural Development & Others, illustrates how decision-making has been removed from the process of legislative deliberation in the Oireachtas. The background to the case is that Agenda 2000, the EU agriculture reform package, proposed the milk quota regime should continue for six years to 2006 but involved other proposals to deal, in particular, with the problem of the extent of quotas held by persons who were no longer actively involved in the production of milk.
It was argued in the case challenging the minister's regulations that the transfer of legislative, executive and judicial sovereignty to the European Union and the Communities was only allowed where this was an obligation resulting from membership of the EU and the Communities. It was argued that as the minister had a discretion as to how he would implement the EC regulations that such a legal obligation did not arise and that in fact the statutory instrument was unconstitutional because it went significantly further than simply giving detailed effect to principles and policies which had already been decided.
In the event, the Supreme Court upheld the regulations despite the Chief Justice's "natural misgivings to find that there is no role for the democratically elected institutions of the State".
A second example also in the area of agriculture is that late last year, with the emergence of the scare on the Continent about BSE, the Agriculture Commissioner, Franz Fischler, exercising the powers of the Commission made a regulation providing that no fattened cattle over 30 months could go for slaughter for human consumption unless they had been tested as BSE negative.
On its face and in the context of there being a risk to human health this seemed a reasonable regulation. However, in the context of the absence of scientific proof that BSE can be passed from a cow to its offspring and having regard to the effective measures introduced in 1996 outlawing the feeding of meat-and-bone meal to Irish cattle it is not surprising that Irish farmers felt that the Commission had taken inadequate note of Irish conditions. They felt the Purchase for Destruction Scheme, although helpful as a market support, encouraged the destruction of good food for a price and, therefore, ran against their instincts and their sense of moral propriety.
What is absolutely clear is that the decision of the Commission left no room for a discretion on the part of the Irish authorities. Nor was there room for parliamentary discussion prior to this regulation being given effect directly within the State.
My third example comes from an entirely different area; that of provision by Community laws for judicial co-operation in civil matters. On May 29th, 2000, the Council made a regulation (No. 1347/2000) on the jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility of children of both spouses.
This is a most important new law which now has direct effect in this State. Among its provisions and effects are that a person may apply for divorce, legal separation or annulment of marriage in any state of the Union in which he/she has been habitually resident for a period of one year. By virtue of article 14 of the regulations, such a judgment of divorce, judicial separation or annulment given in a member-state "shall be recognised in the other member-states without any special procedure being required".
This regulation may have profound effects on the rights of parties, having regard to the provisions of Irish family law including Article 41 of the Constitution which provides for the dissolution of marriage in limited cases. Despite this the regulation or "Brussels Two" as it is known seems not to have been the subject of any discussion in the Oireachtas. We do not know what were the instructions given to the Minister who attended the meeting of the council at which the regulation was adopted. But the regulation speaks for itself and I can find no record of resistance to the making of the regulation by an Irish participant in the council.
I broadly agree with the terms of the regulation but I believe that there are many in the State who would not and who might see the regulation as undermining the institution of marriage and the constitutional rights of family members in circumstances where such rights had only been altered after significant national debate and decision by referendum. Some people might argue it is undemocratic that without any reference to the Oireachtas a decision may be made by the Council of Ministers which is perceived as altering fundamentally decisions made by the Irish people in a referendum. In fact this regulation required a unanimous decision of the council. The Irish minister could have dissented. But apart from this what is crucial is that there is no mechanism whereby the Oireachtas must be consulted on such an important issue before an Irish minister gives his assent in the council.
It is clear that Ireland can only influence decisions of the institutions through its participation in the decision-making of those institutions. Ireland has played an important role in the workings of the Commission through Ireland's appointed commissioners since we joined the Community in 1972. The Commission as a college is a trustee of the treaties. The Commission functions through the profound influence of its legislative and executive powers. If the Treaty of Nice is ratified Ireland will no longer automatically be entitled to a commissioner after the number of member-states of the Union reaches 27. Thereafter it is proposed that there will be equal rotation of an agreed number of Commission seats among the member-states. This means there will be periods in the future when Ireland will be without a commissioner at the Commission. Those periods may be substantial depending on what is finally agreed. The essential point is that the Nice treaty requires us to agree now to what is called "equal rotation among the member-states" of a lesser number of Commission seats.
THE Commission's role as trustee or guardian of the treaties will be undermined should member-states not have an ongoing right to a commissioner. There may be times in the future when the integrity of the treaties or of the Union's institutions may be imperilled and when it may be vital that the Commission perform its role as trustee; this will be better secured should all states be represented in the College of Commissioners. Additionally, whereas states do not rely on their commissioner to secure their interest in the course of Commission deliberations, it inevitably reduces a state's participation in and confidence in the institution of the Commission where a member-state has not a commissioner participating in the important legislative and executive role of the Commission. Further, the principle of equality among-states dictates that every state should have a commissioner irrespective of the difficulties that may arise in terms of the functioning of the Commission. Such practical difficulties could be resolved either by the sharing out of portfolios to all commissioners or some commissioners could rank as commissioners without portfolio but with an acknowledgement of the significance of their important role in the deliberations of the Commission.
The vital role of the Commission is evident from the contribution of Irish commissioners such as Sutherland, MacSharry and Byrne have made in the significant Community policy areas of competition, agriculture and health and food safety in the past two decades. Can it be that we would agree now that there should not be, as of right, an Irish commissioner in the corridors and at the College of Commissioners on such important issues in the future?
Turning to the council, the Treaty of Nice makes three types of changes, two of which are of great significance for Ireland. Firstly, there is to be a reweighting of the votes of the member-states. Whereas Ireland currently has three votes and, say, Germany has 10 votes the position hereafter until the first new member-state accedes to membership will be that Ireland will have seven votes and Germany will have 29 votes at a council meeting. Having regard to the disparity in population between the various member-states it is hard to find fault with the reweighting proposals. Secondly, it is proposed that in relation to decisions which may be made by qualified majority up to the time of accession of a new member-state such decision must secure 169 votes out of the possible 237 votes that might be cast at the council meeting. Thus 71.3 percent represents the required qualified majority of votes to be cast.
The implication of this is that any more than 69 votes will constitute a blocking minority. The importance of this is that it will be easier for large member-states to constitute a blocking minority. For instance whereas Germany (29), France (29) and Greece (12) if voting together may block a proposal because they have 70 votes between them, it will take eight of the current smallest states to muster 69 votes as a blocking minority.
Allied to this it is proposed that qualified majority voting will be extended to a number of areas where at present unanimity is required. These new areas include issues of free movement of citizens under article 18, to issues of asylum, refugees, immigration and displaced persons under article 63 and to judicial cooperation in civil matters, excluding aspects relating to family law under article 65. Thus, it may well be that these sensitive issues which give rise to great difficulty in individual member-states may be decided upon by qualified majority voting at council meetings after the adoption of the Treaty of Nice (note that immigration issues are not to be decided by QMV until after May 2004).
It is easy to see that after Nice, if ratified, decisions of the council may be made in which Ireland has had no positive influence. For instance, Germany, United Kingdom, France, Italy, Spain, the Netherlands, Greece and Luxembourg could secure a qualified majority of 169 votes so as to put in place a decision which might be against the interests of Belgium, Portugal, Sweden, Austria, Denmark, Finland and Ireland.
As the examples above show, one could find that where such decisions of the council permit Ireland a discretion as to the manner in which the decision should be given effect to here, that could be done without any recourse to the Oireachtas and by way of the minister utilising his power under Section 3 of the European Communities Act 1972 to make the appropriate regulation by way of statutory instrument.
At least in such a situation it might be argued that an Irish minister might be sensitive to the manner in which he would give effect to such decision/directive. But where discretion is not left open to an Irish minister because the council has decided to make legislation by regulation which would have direct effect here the possibility of any implementing measure being invoked by Irish authorities is excluded.
It is not my purpose to suggest that the consequences of the Treaty of Nice are apocalyptic. But it is clear that the capacity of an Irish citizen to influence decisions which will intimately affect his/her life will be significantly reduced by the impact of the Treaty of Nice.
What is a great pity is that this State, as a member-state of the Union, has not sought to adjust its domestic institutions and constitutional arrangements to take account of the inevitable demand for institutional change within the Union which has had a deleterious effect on the quality of democracy in this State. The Oireachtas has been entirely sidelined in the context of legislation emerging from the institutions of the Community. Other states have seen a role for their Houses of Parliament in the run-up to decisions of the Council of Ministers. A good example of this is Denmark where the European Affairs Committee, which comprised parliamentarians, meets weekly to be advised in advance by ministers of their proposals for dealing with issues that will arise at Council of Ministers' meetings on the following Monday. At the very least in that system some members of parliament are aware of what is being done and can influence the "riding instructions" that will be given to ministers. There is no such open process here. At the very best a minister may expect to get instructions from the Government but in many cases, from my own experience, it is clear that ministers go to meetings of the Council with a "departmental script". The minister becomes accountable to the Dail only when he returns - in the wake of the decision being made.
I AM PREPARED to vote against the Treaty of Nice. Arguments in support of the treaty have been presented on the basis of the duty of this State to provide for the accession of the expected new member-states. I wish to see the Community being enlarged but I don't think that the Irish electorate should be blackmailed into voting for this treaty on the basis that to do otherwise is to offend and disappoint those states expecting accession.
This treaty is a plan for how Europe may be governed in the absence of a more federal type system, but we should not accede to it when it includes the proposal that each member state will not, as a matter of equality and right, have a member in the college of Commissioners. We should demand that the Senate be reformed so that its 43 members who are currently elected by members of local authorities would be elected on a general franchise by treating the entire State as one constituency for senate elections. Along with its current legislative role the Senate should have an ongoing responsibility of monitoring and mandating upcoming decisions of the council and of reviewing all proposed legislation emanating from the institutions of the Union. I believe this could be done by ordinary legislation and without the need to amend the constitutional provisions relating to the Senate. Without reforms along these lines citizens will rightly become more and more cynical about their relevance to the democratic process in the enlarged Union and will become disillusioned and nonparticipant.
John Rogers is a former Attorney General, having served in the Fine Gael/Labour coalition government of 1984-87. He is now a Senior Counsel.
`This treaty is a plan for how Europe may be governed in the absence of a more federal type system, but we should not accede to it when it includes the proposal that each member-state will not, as a matter of equality and right, have a member in the College of Commissioners'
